Richard Penn clears Dave Green following whistleblower’s allegations surrounding the Highways and Engineering Services Contract award to Colas

Richard Penn clears Dave Green following whistleblower’s allegations surrounding the Highways and Engineering Services Contract award to Colas

Yesterday I read the thirty-nine page report of Richard Penn about Dave Green and the reasons behind his suspension.

For anyone reading it, it doesn’t make much sense without reading the background documents first, so below is a list of two of the background documents I could find online and a link to the minutes of a meeting from 2010 at which one of the reports was discussed.

Highways and engineering services contract Award and Management (Report in the Public Interest) (Audit Commission) 8/6/12

Procurement follow up of Public Interest Disclosure Act disclosure (Audit Commission) 16/9/2010 and the minutes of the Audit and Risk Management Committee of 28th September 2010 that discussed it

The rest of the documents such as the Council’s Conflict of Interest Policy and Conflict of Interest Policy Procedure don’t seem to be on Wirral Council’s website although I did find the Equality Impact Assessment for the Conflict of Interest Policy which refers to the M15 Conflict of Interest Declaration Form and the annual Key Issues Exchange.

The Equality Impact Assessment from the 8th February 2008 states “following Audit advice employees are continually reminded of their obligations to declare any conflict of interest” which raises the point as to whether this was actually happening in practice.

When Dave Green realised there was a conflict of interest on 20th October 2008 if as an employee he was being “continually reminded of his obligations”, he would have stated this conflict of interest using the M15 form, rather than as stated in the report he “immediately sought advice from Simon Goacher regarding the potential for conflicts of interests” (which delayed the M15 form being submitted for three weeks which meant it was after the whistleblowers made their allegations about him).

Moving to the part of the report that states “Dave Green also commented on what he described as the inaccurate reporting of facts in the local press. The Council has done nothing to correct the incorrect reporting largely generated by the Council publishing and considering the wrong report at the July Council meeting.” and “Dave Green considered that it was absolutely unreasonable for the Council to allow such inaccurate reporting to continue and demonstrated a poor ‘duty of care’ to him as one of its employee.”

Certainly there was something in the Council’s press release in response to the Audit Commission report entitled “Council response to District Auditor’s report” dated 8th June 2012 that someone took exception to it as it’s been removed from Wirral Council’s website and was the press release that this Wirral Globe story was based on.

The part of the Council meeting referring to Dave Green’s suspension was unusually held in private without the press and public present see here, although the public interest report was discussed in public, it seems the Audit Commission report on Wirral Council’s website was replaced with a different version a week after the meeting was held.

Cabinet (Wirral Council) 28th September 2012 Any Other Urgent Business Approved by the Chair

Any Other Business, Wirral Council’s Cabinet 28th September 2012

Interest declaration: The author is a member of a trade union and a member of the media affected by this law change.

There was an Any Other Business item at Wirral Council’s Cabinet last night, with a recommendation from Surjit Tour, the Acting Director of Law, Human Resources & Asset Management (which was agreed). It seems to be in response to a point I made a week ago by email to a Wirral Council councillor when the Cabinet agenda was published and follows on from this blog post, as the law referred to came into effect on the 10th September 2012.

I had previously brought it up with my trade union, that Wirral Council didn’t seem to be complying with the new law, which is why I followed the approach suggested and brought it up with Wirral Council’s legal team and the people involved. One councillor on the Cabinet has asked for an email about it which I will write in the near future.



That Cabinet authorises the Council’s Chief Officers to seek all requisite consents and/or agreement on behalf of Cabinet from relevant persons as required by The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 where an item to be considered by Cabinet includes exempt information and it is not possible to provide at least 28 clear days notice of that item.

Personally, it’s not quite resulting in the outcome of considerably more openness and accountability I had hoped for (although most legislation has caveats and loopholes that can be exploited). It is however, a step in the right direction as it (hopefully) provides a check and balance on the executive power of the all-Labour Cabinet’s future attempts to make decisions behind closed doors resulting in less scrutiny from the press and public, as really (because to do so without giving 28 days notice they have to first seek consent from the Chair of the Overview and Scrutiny Committee first) should (unless officers and councillors are deliberately trying to make an administration make major decisions in secret) only happen very rarely.

This seems to be one small step on the way to complying with the legislation (whether the spirit and intent behind the legislation is followed depends how Wirral Council implement it in practice), which means regulation 5(2) and 5(3) don’t have to be complied with (see regulation 5(6)) if the part of the meeting held in private is “urgent and cannot reasonably be deferred” and they get the agreement of the relevant Chair of the Overview and Scrutiny Committee (or if they’re not available others are mentioned)).

Personally as last night’s Cabinet meeting (it wasn’t a special meeting but a regular one) was in the calendar of meetings decided on the 12th April 2012 and it was a matter that had been known about since 26th June 2012, why wasn’t the 28 clear days notice given (which would’ve had to have been given around the end of August 2012)? Well firstly, the Colas matter did need urgent attention (as Colas have been behaving churlishly since the public interest report by the Audit Commission as to how the contract was awarded to them was published and announced they don’t want the contract past 2014. So who’s Cabinet Portfolio does these two items fall under? It’s Cllr Harry Smith’s (Labour), the Cabinet Member for Streetscene and Transport.

Personally I think it should be the relevant Cabinet Member or Cabinet asking for consent from another councillor rather than Chief Officers on their behalf, although the legislation can be interpreted in different ways. In my opinion what was agreed last night puts too much power in Chief Officer’s hands, whose powers of persuasion over Wirral councillors are well-known.

Audit Commission Report on Wirral Council (public interest report)

Public Interest Report written by the Audit Commission about Wirral Council’s procurement process for the provision of highway and engineering services in 2008/09.

There have been a number of readers interested in the public interest report published by the Audit Commission. Links to it and related material are below.

The 24-page report (as a pdf file) entitled “Wirral Council: Report in the public interest” . ED – 29th December 2013 This link previously linked to the Audit Commission’s website. However the Audit Commission is in the process of being abolished so the previous link now points to a copy of the public interest report hosted on this blog.

The Wirral Council press release about it dated 8th June 2012 ED – 29th December 2013 The press release relating to the public interest report is no longer available on Wirral Council’s website and merely returns an “Access denied” page.

A page on the Audit Commission website specifying the report is about Wirral Council’s procurement process for the provision of highway and engineering services in 2008/09 *This previously linked to a page on the Audit Commission’s website. However the page is no longer there as the Audit Commission is in the process of being abolished.

There have also been a number of press articles about it, Twitters etc… I’m pretty sure it’ll be discussed at the Audit and Risk Management Committee meeting on Thursday too, based on the tweet of a Labour councillor.